01a01994
07-19-2000
John Shaffer, Complainant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.
John Shaffer v. Small Business Administration
01A01994
July 19, 2000
John Shaffer, )
Complainant, )
)
v. ) Appeal No. 01A01994
) Agency No. 0499025
Aida Alvarez, )
Administrator, )
Small Business Administration,)
Agency. )
______________________________)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final decision of the agency
concerning complainant's claim that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The
appeal is accepted in accordance with 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<1>
The issues on appeal are whether the agency properly dismissed
complainant's formal complaint regarding his termination on the grounds
that complainant elected to challenge the termination through the Merit
Systems Protection Board.
Complainant filed an EEO complaint with the agency, in May 1998, regarding
a Proposed Letter Of Removal, but challenged his termination of October
5, 1998, through the MSPB. The MSPB issued a decision regarding the
termination which became final on April 29, 1999. On April 23, 1999,
complainant filed an EEO complaint with the agency claiming that the
termination was retaliatory.
EEOC regulation 29 C.F.R. � 1614.302(b) provides that an aggrieved
person may initially file a mixed case complaint with the agency or an
appeal on the same matter with the MSPB, but not both. Moreover, the
adjudication of a case by the MSPB on its merits is tantamount to an
election of remedies. See Aho v. Department of Agriculture, EEOCRequest
No. 05860085 (May 22, 1985).
After carefully reviewing complainant's statements on appeal, we find
that he made an election to challenge his termination through the MSPB
and may not now raise, through the agency's EEO process, a claim of
reprisal discrimination regarding the termination. Complainant should
have raised claims of discrimination through the MSPB in accordance with
our regulations. We note as well that the issue of complainant's Proposed
Letter of Removal, which is discussed in complaint's appeal herein, is
inextricably intertwined with the issue of complainant's termination;
the MSPB necessarily considered this matter in order to determine
if complainant's removal was proper. See Marchini v. Department of
Agriculture, EEOC Request No. 05930880 (January 21, 1994). Accordingly,
it is the decision of the Commission to AFFIRM the agency's dismissal
of complainant's EEO complaint of April 23, 1999.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If
you file a request to reconsider and also file a civil action, filing
a civil action will terminate the administrative processing of your
complaint. � 1614.604(c).
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
07-19-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.